Citation Nr: 0811301
Decision Date: 04/04/08 Archive Date: 04/14/08
DOCKET NO. 03-12 440 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for arterial
hypertension.
2. Whether new and material evidence has been received to
reopen the veteran's claim for entitlement to service
connection for a back disability.
3. Whether new and material evidence has been received to
reopen the veteran's claim for entitlement to service
connection for a psychiatric disorder.
4. Whether new and material evidence has been received to
reopen the veteran's claim for entitlement to service
connection for headaches.
5. Entitlement to a disability rating in excess of 10
percent disabling for the residuals of a simple fracture of
the distal phalanx of the left index finger.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Eckart, Counsel
INTRODUCTION
The veteran had active military service from January 1953 to
January 1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2002 rating decision of
the Department of Veterans Affairs (VA), Regional Office
(RO), located in San Juan, the Commonwealth of Puerto Rico.
The Board in a March 2005 decision denied the enumerated
claims. In doing so, the Board classified the claims
pertaining to a back disability, a psychiatric disorder, and
headaches in terms of whether new and material evidence had
been received to reopen previously denied claims of
entitlement to service connection. See Barnett v. Brown, 8
Vet. App. 1 (1995). The veteran appealed these issues to the
United States Court of Appeals for Veterans Claims (Court).
Both parties in this appellate matter filed a Joint Motion
for Remand. In a decision rendered June 22, 2006, the Court
granted the Joint Motion and remanded it to the Board for
further development. The Board remanded it in December 2006
for such requested development.
Although the RO in an October 2007 supplemental statement of
the case determined that the evidence was sufficient to
reopen a claim for service connection for a back disorder,
the Board has a legal duty to address the "new and material
evidence" requirement regardless of the actions of the RO.
Thus it will continue to address this issue in terms of
whether new and material evidence has been submitted to
reopen this claim. See Barnett, supra.
During the pendency of the appeal the RO in a September 2007
rating granted a 10 percent rating for the left index finger
disability effective the date of claim in December 8, 2000.
As that award was not a complete grant of benefits, the issue
remains in appellate status. See AB v. Brown, 6 Vet. App. 35
(1993).
The appeal is REMANDED to the agency of original jurisdiction
(AOJ) via the Appeals Management Center (AMC), in Washington,
DC. VA will notify the appellant if further action is
required.
REMAND
Although these matters were remanded in December 2006, the
requested development is incomplete or inadequate. In
addition there remains outstanding due process notification
deficiencies regarding the issues of whether new and material
evidence has been received to reopen the veteran's claims for
entitlement to service connection for a back disability, a
psychiatric disorder and headaches. The Board notes that in
the most recent supplemental statement of the case of October
2007, further adjudication of all the service connection
issues including the new and material issues was deferred in
part, due to the outstanding need to obtain additional
evidence as mandated by the Board's prior remand. Thus
correction of these development deficiencies must be
completed, and the AOJ must be given another opportunity to
readjudicate these service connection issues before the Board
can issue a decision. Additionally, the development
regarding the issue of entitlement to an increased rating for
the left index finger is not in compliance with the Board's
remand directives. The Court has held that a remand by the
Board confers on the veteran or other claimant, as a matter
of law, the right to compliance with the remand order. See
Stegall v. West, 11 Vet. App. 268, 271 (1998).
In addition, the veteran is noted to have submitted a
statement in February 2008 asking the VA to obtain evidence
from medical providers including a Dr. Rolando Colon Nerot an
orthopedic surgeon, who allegedly evaluated the veteran's
back condition, as well as records from a Dr. Joshe Rivera
Morales in the Ponce OPC in Ponce, Puerto Rico, which the VA
should attempt to obtain.
Regarding the developmental deficiencies, the Board in its
December 2006 remand directed the AOJ to make reasonable
efforts to obtain evidence from a private physician, Dr.
Vilar and a private hospital, Damas Hospital. It was pointed
out that the veteran had advised the RO in August 2003 that
although Dr. Vilar's records were damaged, he was willing to
discuss the case with the VA.
The Joint Motion and the Board noted that the AOJ did not
make any efforts to contact this physician for a statement
regarding the veteran's treatment, nor did the RO inform the
veteran that he could have this physician submit such a
statement. Thereafter, the veteran was sent a letter in
January 2007 which in part requested that he complete and
return to the AOJ a VA Form 21-4142 for both Damas Hospital
and Dr. Vilar. Despite the fact that he did not return such
a form to the AOJ with the requested information regarding
these private medical providers, the AOJ is nevertheless
noted to have deferred further consideration of all the
service-connection claims pending receipt of additional
medical evidence from the veteran, including evidence from
these medical providers, as pointed out in the October 2007
supplemental statement of the case. Thus, the Board will
afford the veteran yet another opportunity to provide the AOJ
with information regarding these medical providers, including
that requested in a VA Form 21-4142, as well as from any
other additional medical providers such as those mentioned by
the veteran in the February 2008 statement.
Further, the Board addressed the AOJ's failure to make
reasonable efforts to obtain outstanding medical evidence
including clinical records from the VA outpatient clinic in
Ponce, Puerto Rico, service medical records located in Old
San Juan, Puerto Rico, service medical records located in
Stuttgart, Germany and private German hospital records at
Heilbron, Germany. The veteran is noted to have described
the potential existence of pertinent medical evidence from VA
Puerto de Tierra Hospital, VA outpatient Clinic in Ponce,
Puerto Rico, Fort Brook in Old San Juan, Puerto Rico and
Fifth General Hospital in Stuttgart, Germany. The Board, in
addressing the deficiencies discussed in the Joint Motion
pointed out that such records included records in government
possession, and that the AOJ was said to have failed to
adequately attempt to obtain these records or confirm their
unavailability. The AOJ appears to have obtained all
available records from the VA outpatient Clinic in Ponce,
Puerto Rico as a response to requests for medical evidence
resulted in the submission of VA treatment records in the
custody of this facility from the 1990's to the present. An
attempt to obtain evidence from the VA Puerto de Tierra
Hospital resulted in a response in July 2007 reflecting that
this clinic no longer exists. However, in regards to the
attempts to obtain service medical records, including those
located in Old San Juan, Puerto Rico, service medical records
located in Stuttgart, Germany and private German hospital
records at Heilbronn, Germany, the AOJ has yet to receive a
response, either positive or negative from the National
Personnel Records Center (NPRC). This is pointed out by the
October 2007 supplemental statement of the case which noted
that no response to a January 2007 request to the NPRC was
received and that no follow up request had been made by the
VA, and because of this, further adjudication of the service-
connection claim for the headaches and a psychiatric disorder
would be deferred. Thus, another attempt should be made to
obtain such records.
Regarding the claim for service connection for a back
disorder, the AOJ in the October 2007 supplemental statement
of the case determined that the evidence was sufficient to
reopen this claim, but then determined that a VA examination
was necessary to further address this issue. To date, no
such examination has been scheduled, and in light of the
AOJ's finding that one is necessary to adjudicate this claim,
one should be scheduled.
The Board in its December 2006 remand noted that the Joint
Motion pointed out that the VA examination of August 2001 to
evaluate a left index finger disability was not adequate
because it was not conducted during a period of acute
exacerbation of the impairment. The motion directed that an
examination be conducted during a period of active flare up
of the left finger disability. Although there was a VA
examination in July 2007 that addressed the left finger
disability, there is no indication that this examination was
conducted during a period of acute flare-up as specifically
ordered by the Board in December 2006 to satisfy the Joint
Motion and the representative has pointed out this deficiency
in a February 2008 written statement. In order to comply
with the Remand's directives, another examination must
address this disorder during such an acute flareup. See
Stegall, supra.
Finally, the Board directed the AOJ to provide adequate
notice mandated by Pelegrini v. Prinicipi, 18 Vet. App. 112
(2004) regarding new and material evidence needed to reopen
his previously denied claims, to include the criteria for new
and material evidence applicable to claims filed prior to
August 29, 2001, as is the case in this matter. The Board
also directed that the notice comply with the decision of
Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held
that the VA's notice requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) apply to all five elements of a
service-connection claim, including the degree of disability
and the effective date of an award. Although the veteran was
sent a letter in July 2007 which addressed the duty to assist
regarding all the issues in January 2007 which did satisfy
the requirements of Dingess and Kent, supra, the letter
failed to give the proper legal criteria for new and material
claims filed prior to August 29, 2001, and instead gave the
criteria for claims filed thereafter. Therefore, additional
duty to assist notice must be sent giving the proper criteria
for new and material claims filed prior to August 29, 2001.
In addition there has been a recent decision by the Court
addressing increased rating claims, Vasquez-Flores v. Peake,
22 Vet. Ap. 37, 2008, which points out that for an increased-
compensation claim, section § 5103(a) requires, at a minimum,
that the Secretary notify the claimant that, to substantiate
a claim, the claimant must provide, or ask the Secretary to
obtain, medical or lay evidence demonstrating a worsening or
increase in severity of the disability and the effect that
worsening has on the claimant's employment and daily life.
Further, if the Diagnostic Code under which the claimant is
rated contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. Vazquez-
Flores v. Peake, supra.
Accordingly, the case is REMANDED for the following action:
1. The AOJ must review the entire claims
file and ensure that all notice
obligations have been satisfied in
accordance with 38 U.S.C.A. § 5103(a) and
38 U.S.C.A. § 5103A (West 2002 & Supp.
2007) and 38 C.F.R.
§ 3.159 (2007) is fully satisfied. In
particular, the AOJ must send the veteran
a corrective notice, that: (1) explains
the bases upon which his prior claims
were denied and the information or
evidence needed to establish new and
material evidence to reopen a previously
denied claim, which under the pre-August
29, 2001 criteria is defined as evidence
not previously submitted to agency
decisionmakers which bears directly and
substantially upon the specific matter
under consideration, which is neither
cumulative nor redundant, and which by
itself or in connection with evidence
previously assembled is so significant
that it must be considered in order to
fairly decide the merits of the claim;
(2) informs him of what information or
evidence VA has or will seek to provide;
and (3) informs him of what information
or evidence he is expected to provide to
support his claim.
The veteran should also be provided
notice that explains the information or
evidence needed to establish entitlement
to an increased rating for the left index
finger disability. In particular, VA
must send the appellant a corrective
notice, that explains (1) the information
and evidence not of record needed to
establish an effective date, if an
increased rating is granted on appeal, as
outlined by the Court in Dingess, supra,
(2) that he can submit medical or lay
evidence demonstrating a worsening or
increase in severity of the disability
and the effect that worsening has on the
claimant's employment and daily life, (3)
generally, the criteria necessary for
entitlement to a higher disability
rating, (4) that, should an increase in
disability be found, a disability rating
will be determined by applying relevant
Diagnostic Codes, which typically provide
for a range in severity of a particular
disability from noncompensable to as much
as 100 percent (depending on the
disability involved), based on the nature
of the symptoms of the condition for
which disability compensation is being
sought, their severity and duration, and
their impact upon employment and daily
life, and (5) types of medical and lay
evidence that the claimant may submit (or
ask the Secretary to obtain) that are
relevant to establishing entitlement to
increased compensation-e.g., competent
lay statements describing symptoms,
medical and hospitalization. Vazquez-
Flores, supra.
2. The AOJ should obtain service medical
records located in Old San Juan, Puerto
Rico (to include from Fort Brook in Old
San Juan) and service medical records
located in Stuttgart, Germany (to include
records from the Fifth General Hospital
in Stuttgart, Germany). All efforts to
obtain these records should be fully
documented, and the National Personnel
Records Center and the VA should provide
a negative response if records are not
available.
3. The AOJ should contact the veteran to
determine the names, addresses, and dates
of treatments of any and all private
medical care providers, who treated him
for his claimed medical disabilities on
appeal. These are to include records
from Damas Hospital and private records
from Dr. Vilar, as well as evidence from
medical providers described by the
veteran in a February 2002 statement,
including a Dr. Rolando Colon Nerot an
orthopedic surgeon, who allegedly
evaluated the veteran's back condition,
as well as records from a Dr. Joshe
Rivera Morales in the Ponce OPC in Ponce,
Puerto Rico. Additionally, the AOJ
should contact Dr. Vilar for a statement
regarding the veteran's treatment, and
should inform the veteran that he could
have Dr. Vilar submit such a statement
regarding his treatment. All
correspondence, as well as any treatment
records obtained, should be made a part
of the claims folder. If private
treatment is reported and those records
are not obtained, the veteran and his
representative should be provided with
information concerning the negative
results and afforded an opportunity to
obtain the records. 38 C.F.R. § 3.159
(2007).
4. Thereafter, the claims folder, and
especially copies of all medical records
concerning treatment and/or testing of
the left index finger disability, if
supplied, should be referred to the
appropriate VA specialist. The veteran
should be scheduled for a VA orthopedic
examination to determine the severity of
the left index finger disability. All
indicated tests should be conducted and
the examination must be done during a
period of acute flare-up. The claims
file and a copy of this REMAND must be
made available to and reviewed by the
examiner prior to the examination.
Readings should be obtained concerning
the veteran's range of motion of the left
index finger in degrees. The examiner
should also be asked to include the
normal ranges of motion of the left index
finger. Additionally, the examiner
should be requested to determine whether
the left index finger exhibits weakened
movement, excess fatigability, or
incoordination, and, if feasible, these
determinations should be expressed in
terms of the degree of additional range
of motion lost or favorable or
unfavorable ankylosis due to any weakened
movement, excess fatigability, or
incoordination. The examiner should
state whether there is a restriction in
motion of a gap of one inch (2.5
centimeters) or more between the
fingertip and the proximal transverse
crease of the palm, with the finger
flexed to the extent possible, or with
extension limited by more than 30
degrees, or whether there is favorable or
unfavorable ankylosis of the finger. The
examiner should also discuss whether
additional fingers are affected and if
so, should discuss the nature and extent
to which they are affected. The report
of the examination should include the
complete rationale for all opinions
expressed.
5. After the completion of the above,
the AOJ should schedule the veteran for
an orthopedic examination to determine
the nature and etiology of the veteran's
claimed back disorder. The claims file
and a separate copy of this remand must
be made available to and reviewed by the
examiners prior and pursuant to
conduction and completion of the
examination, and the examination reports
must be annotated in this regard. The
examiner is requested to review the
pertinent medical records, examine the
appellant and provide a written opinion
as to the presence, etiology and onset of
his claimed back disorder. Specifically
the examiner is requested to provide an
opinion as to (1) whether the veteran has
a current disability or disabilities
involving his back; (2) whether any
diagnosed disability involving his back
at least as likely as not began in
service, to include as being related to
the back complaints shown in service.
The examiner must provide a comprehensive
report including complete rationales for
all conclusions reached.
6. The AOJ should inform the veteran of
the consequences of failing to report for
a VA examination without good cause as
set forth in 38 C.F.R. § 3.655 (2007).
7. Following completion of the
foregoing, the AOJ should review the
claims folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
opinions rendered by the VA specialist.
If the examination report does not
include fully detailed descriptions of
etiology, the report must be returned to
the examiner for corrective action. 38
C.F.R. § 4.2 (2007) ("if the
[examination] report does not contain
sufficient detail, it is incumbent upon
the rating board to return the report as
inadequate for evaluation purposes.").
Green v. Derwinski, 1 Vet. App. 121, 124
(1991).
8. After the above requested development
has been completed, the AOJ should
reajudicate these claims. If any benefit
sought is not granted to the veteran's
satisfaction, the AOJ should issue a
supplemental statement of the case which
should address the significance of both
medical and lay evidence of record in
adjudicating this claims. The requisite
period of time for a response should be
afforded.
Thereafter, the case should be returned to the Board, if in
order. The purposes of this remand are to comply with due
process of law and to further develop the appellant's claims.
The Board intimates no opinion, either legal or factual, as
to the ultimate disposition warranted in this case. The
appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).